N-D (Children) [2014] EWCA Civ 1226

Successful appeal against care and placement orders on the basis that the judgment had failed to provide adequate reasoning behind the welfare determination

A care order was made in respect of a 15 year old child and care and placement orders were made in respect of his two siblings aged 4 and 19 months. The parents had been convicted in the Crown Court of serious physical abuse against the 15 year old, the father received a term of imprisonment and the mother a suspected sentence supervision order. The care order in respect of the 15 year old with a plan of foster placement was not appealed by the parents.

The parents appealed the care and placement orders in respect of the two youngest children and were granted permission to appeal on the basis that the judgment contained no analysis of the threshold under section 31 of the Children Act 1989, no welfare analysis of the risks to the children having regard to section 1(3)(e) of that Act, no adequate welfare comparison of the options for the children and, accordingly, a flawed proportionality evaluation.

The Court of Appeal allowed the appeal in respect of failure to reason the welfare determination. The court set aside the care and placement orders and directed a re-hearing before a different circuit judge for the following reasons:

i) The scant nature of the 4 and a half page judgment was unacceptable in particular given that it was following a 6 day hearing and a 1 month delay for judgment.

ii) The origin of the problem in the case was that the threshold document had been agreed between the parties which resulted in the judge failing to analyse it with care so as to separate out the facts relating to each child and the consequent risks.

iii) The judge had described the witnesses she accepted and rejected without setting out what she accepted and rejected from each witness' evidence.

iv) The judge failed to set out an analysis of the benefits and detriments of the two options available, having heard from a number of experts who had competing recommendations and having failed to justify why she preferred some of the experts' conclusions over others.

v) A re-hearing was required as it is not appropriate for the Court of Appeal to make value judgments about the welfare factors and the options available from the transcripts. This is the function of the first instance judge who has heard the witnesses and evaluated the quality of their assessments by reference to the direct evidence of the parents.

Criticism was made of the parties' representatives on the basis that they should have asked the judge for further or better particulars of her judgment so that the reasoning behind it became clear.

1. LORD JUSTICE RYDER: This is an appeal against care and placement orders made by Her Honour Judge Penna in the Manchester County Court on 20 March 2014, in respect of two of the three children of parents who originated from Zimbabwe, they having emigrated from that country seeking asylum in 2003. The three children concerned are B, a young man now aged 15, A, a girl aged 4 and D, a boy aged 19 months. The eldest, B, was raised by his grandmother in Zimbabwe and joined the family in the United Kingdom in December 2010. By then A had been born and D was to follow. B had never been cared for by his father and only briefly by his mother.

2. The case was all about the appalling abuse that that B suffered at the hands of both of his parents in 2013. B was physically assaulted in a violent, sustained attack and that was said to be an example of repeated violence against him. He was injured to the extent that the eminent physician who examined him categorised his clinical presentation as the consequence of the deliberate infliction of violence in the top 2% of that which he had seen in his professional experience. The violence was instigated by his mother although the preponderance of it was perpetrated by his father. The nature of the attack was described as "uncontrolled rage" and B only avoided more drastic and potentially tragic consequences by escaping through a window dressed only in his boxer shorts.

3. The parents were both convicted after a Newton hearing in the Crown Court within which B had to give evidence. They did not accept the true extent of their culpability. The father was sentenced to a term of imprisonment and the mother, perhaps surprisingly, was given a suspended sentence supervision order.

4. There is no appeal against the care order made by the judge in respect of B. He is to be placed with appropriate foster parents and he would like contact with his siblings. The nature and extent of any contact with his parents is not an issue for this court and I shall refrain from further comment given that B has very distinct needs relating to his feelings of justification for and guilt relating to the breakup of the family. He has needs which must be assessed and provided for.

5. Turning then to the appeal, which relates to the care and placement orders made in respect of the two younger children, A and D. Permission to appeal was granted in this case because the approved note of judgment contains (in respect of the children A and D): no analysis of the threshold to be satisfied having regard to section 31 of the Children Act 1989, no welfare analysis of the risks relating to the children having regard to section 1(3)(e) of that Act, no adequate welfare comparison of the options for the children and accordingly a flawed proportionality evaluation.

6. Given that this was a six day hearing before an experienced specialist circuit judge and that the judgment was reserved for a month, the scant nature of the four and a half page judgment is unacceptable. Parties are entitled to know the basis upon which the court has made its decisions. The proceedings before this court which have caused inevitable delay for the children and considerable expense are the direct result of the lack of overt reasoning in the judgment.

7. At least some of the blame for that consequence must rest with the parties. One or indeed all of them should have asked the judge for further and better particulars of her judgment so that the reasoning behind it became clear. That did not happen and as the single judge in this court remarked on giving permission to appeal, such was the scale of that which was missing that it was inappropriate for him to take that course.

8. The genesis of the problem in this case was a document described as "an amended threshold document". That appears to have been agreed between the parties, with the consequence that the judge erroneously failed to analyse it with care so as to separate out the facts relating to each child and the consequent risks and thereby to approve or reject the same. The document made only one reference to A and no reference at all to D. Only by a careful cross reference of the inappropriately generalised statements in that document, to the conclusions reached by the judge in her judgment, can a threshold be discerned which is sufficient to satisfy section 31 of the 1989 Act.

9. We are grateful to Mr Ekaney QC, who appears today on behalf of mother, for his sensible and appropriate concession that the threshold was indeed satisfied by the findings made by the judge in respect of both the younger children. It should not be the responsibility of the parties or the Court of Appeal to undertake the task of analysing or constructing the threshold from a judgment.

10. In essence section 31 was satisfied by the following evidence accepted by the judge either as a consequence of the parties' agreed threshold facts or the evidence that she heard:

(1) B was seriously injured by repeated and at least one sustained attack by both parents, instigated by his mother and perpetrated primarily but not exclusively by his father.

(2) A was inappropriately physically chastised by her mother by being slapped or touched on her cheeks.

(3) A was emotionally harmed by witnessing the harm caused to B and/or by being aware of it and/or by her apprehension that she would suffer the same violence.

(4) The mother and the father have lied about their violence to B, i.e. they were and are dishonest about it.

(5) The mother and the father have minimised their responsibility for and the extent of their violence to B, i.e. there is no full acceptance of it by them.

(6) The mother and the father have demonstrated no sufficient insight into what happened; i.e. why it happened so as to reassure professionals it would not happen again.

(7) The mother and father have entrenched attitudes to punishment that would be difficult to overcome; and

(8) There is a risk of serious physical and emotional harm to A and D arising out of the parents' dishonesty, lack of acceptance, lack of insight and entrenched attitudes, such that the absence of an alternative strategy in the parents which is protective of the children, as they grow up to teenagers, presents a risk of significant harm.

It was not beyond the judge or the parties to have undertaken the task that I have just undertaken. The evidence that that analysis is based on was accepted by the judge in dispersed one line conclusions, which I have brought together. The conclusions are solidly based in the evidence, evidence which it is known the judge accepted because she said so. Accordingly, there can be no doubt that on the findings and value judgments the judge made, the threshold in section 31 of the Act was satisfied. The likelihood of harm to A and to D thereby described carried across to the risk to be analysed alongside the other factors in the welfare evaluation.

The judge performed that evaluation by describing the witnesses she accepted and those she rejected, without undertaking the exercise of setting out what she accepted and rejected from that which the witnesses had said. That was unhelpful on the facts of this case, not least because the court had spent 6 days hearing different risk assessments based upon expert evidence that the court had permitted to be undertaken because those experts were necessary; i.e. their skill and expertise were said to be beyond that otherwise available to the court. The essence of those risk assessments was whether the professionals could work with the mother until the father was released from prison and thereafter, if necessary, work with both parents so as to protect the children.

11. There was psychological evidence and independent social work evidence about the prima facie risk presented by the parents and which is described in the threshold I have set out. The evidence included a discussion about a 'resolutions' approach to that risk. That approach involves professionals being clear and firm with parents who do not acknowledge full responsibility for what has happened in order to develop strategies for the protection of children in the future.

12. There were positive reports from both the psychologist and from a specialist organisation that is respected and well known and which works with parents whose life experiences and cultural norms, in particular in relation to corporal punishment, would not be those experienced by most people in the United Kingdom, or indeed accepted by most people in the United Kingdom. They recommended the rehabilitation of A and D to their mother.

13. Balanced against the recommendations of the two experts that I have described was an impressive assessment of a social worker from the local authority, Mr Murphy, who had worked with and understood the resolutions approach and also a comprehensive analysis from an experienced Children's Guardian. The evidence of both of these witnesses was preferred by the judge. They recommended adoption. The judge was entitled to exercise her judgment in that way, provided she reasoned the same. The judge undertook that exercise by commending the analysis of the Children's Guardian which she incorporated into her judgment without setting it out and by accepting the evidence of the social worker, which she did not particularise. This court is invited to conduct the exercise which was the function of the first instance judge; i.e. an analysis of the benefits and detriments of the two available options – rehabilitation and adoption - by reference to the assessment evidence which the judge accepted. That would have involved understanding why the judge rejected the evidence of the psychologist and the resolutions approach of the specialist assessor and also why the judge accepted that the risks described in the threshold were not susceptible of being provided for in the way advised by two of the experts.

14. Miss Grocott QC, for the local authority, realistically accepted the enormity of her task. She took this court to the reasoning that was available to the judge, in the written evidence of the probation officers who had undertaken risk assessments, the social worker's risk assessment and the Children's Guardian's analysis and thereby and by inference she sought to identify the reasons why the judge rejected the assessments of the psychologist and the specialist assessor.

15. I entirely accept that if one analyses the transcripts of evidence as Miss Grocott has, and I emphasise that she has, like this court, come to this case afresh, it is possible to identify the answers to questions which give an evidential pathway to the conclusion of the Children's Guardian which the judge adopted in one line: "I adopt the analysis of the Children's Guardian." I do not accept that on the facts of this case it was appropriate for the judge simply to adopt the analysis in that way. Assuming that it was appropriate for the judge to give full credit for the quality of the analysis by the Guardian, for example by setting out a summary of the same, she would still have had to justify from the evidence she had heard and accepted, why she preferred four witnesses against rehabilitation, that is the social worker, the two probation officers and the Children's Guardian, against the two witnesses who were in favour of rehabilitation. That is a task which is still to be undertaken.

16. The evidential pathway may well exist. It may even be a powerful case against the mother and likewise the father. It was incumbent on the judge to reason it. The question to be answered was and at a re-hearing will be: why is the risk such that it could not be protected against? The exercise asked of this court is beyond a review and would involve this court making value judgments about the welfare factors and the options that is a fundamental part of a function of the first instance judge who has seen and heard the witnesses and evaluated the quality of their assessments by reference to the direct evidence of the parents of the issues in question. That is not an appropriate task for this court to undertake from the transcripts on the facts of this case.

17. With much regret therefore and with considerable sadness that this situation has been allowed to arise, I would allow this appeal in part, namely as respects the failure of the judge to reason her welfare determination, set aside the care and placement orders in respect of A and D and direct a rehearing of the welfare determinations based on the threshold identified by this court. I would anticipate the witness requirements for a re-hearing to be the social worker, Mr Murphy, the two probation officers, unless their evidence can be agreed, the psychologist and the specialist assessors together with the Children's Guardian. The re-hearing needs to be undertaken by a different circuit judge to be allocated by the Family Division Liaison Judge for the Northern Circuit.